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Kingsley Okoro V. The State (SC.85/2013, 17 Feb 2023)

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➥ CASE SUMMARY OF:
Kingsley Okoro V. The State (SC.85/2013, 17 Feb 2023)

by Branham Chima.

➥ ISSUES RAISED
Incompetent notice of appeal.

➥ CASE FACT/HISTORY
The very sad and pathetic facts which led to the conviction of the Appellant, so-called Pastor, as borne out by the evidence placed before the trial Court, including the proved confessional statements by the Appellant admitted as Exhibits “B” and “C”, are that the Appellant who was the husband of the deceased, intentionally and deliberately, poured petrol on the carpet of their bedroom, brought a packet of matches into the room, lit a stick of the matches and dropped it on the soaked carpet with the deceased in the room. Expectedly, as intended by the Appellant, there was an instant explosion of fire which engulfed the room and severely burnt the deceased who died from the burns. 

The Appellant was charged with and convicted for the offence of murder contrary to and punishable under the provision of Section 319 (1) of the Criminal Code, Cap. 48, Vol. II, Laws of the defunct Bendel State, applicable to Delta State, by the High Court of Delta State, Udu (the trial Court) in a judgment delivered on the 28th July, 2008. He was sentenced to death by hanging.

This appeal is against the said judgment of the Court below.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL STRUCK OUT]

↪️ I. Whether the Appeal is competent despite filed out of time?

RESOLUTION: APPEAL STUCK OUT.
[APPEAL IS FILED OUT OF TIME
‘In this appeal, as can easily observed, since the judgment of the Court below sought to be appealed against by the Appellant to this Court, was delivered on the 11th December, 2012, the thirty (30) days period of time prescribed and limited by the provisions of Section 27 (2) (a) above started to run from that day; the 11th December, 2012, for the purpose of giving the notice of appeal against it and ended and expired on the 9th January, 2013, both days inclusive. After the 9th January, 2013, a valid and competent Notice of Appeal against the said judgment/decision of the Court below to this Court could and can only be filed, or given after and only if, the prior extension of time to appeal was sought for and obtained from the Court for the notice to be given or filed. As stated earlier, a notice of appeal, given or filed after the expiration out of the time prescribed and limited without such prior extension of time by the Court, is invalid and incurably incompetent. See Tiza v. Begha (2005) 5 SC (pt. 11) 1, (2005) 15 NWLR (pt. 949) 616, Amadi V. INEC (2012) LPELR – 7831 (SC), Osun State Govt. v. Dalami Nig. Ltd. (2007) All FWLR (pt. 365) 438, Awhinashi v. Oteri (1984) 5 SC, 38. As stated by the learned Counsel for the Appellant as shown in the Amended Appellant’s brief, and borne out by the Notice of Appeal at page 215 – 221 of the Record of Appeal, the Appellant’s Notice of Appeal was filed on the 6th February, 2013; a period of about fifty-eight (58) days after and from the date the judgment/decision of the Court below was delivered. There is no record before the Court and the learned Counsel for the Appellant did not state, indicate or claim that the requisite prior extension of time to give or file the Notice of Appeal was sought for, or obtained from the Court before the said Notice of Appeal was given or filed on the 6th February, 2013. Undoubtedly, therefore, the Notice of Appeal was given or filed out of time in contravention and breach of the statutory provisions in Section 27(2)(a) of the Supreme Court Act, and so legally invalid and judicially incompetent, incurably.’]
.
.
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✓ DECISION:
‘The Notice of Appeal is accordingly struck out for being incompetent in law, along with the appeal.’

Available:  AG Of Lagos State v. The AG Of The Federation (2003)

➥ FURTHER DICTA:
⦿ IN CRIMINAL CASES, NOTICE OF APPEAL SHOULD BE FILED THIRTY DAYS AFTER JUDGEMENT DELIVERY
After hearing the appeal on the 24th November, 2022 and at the conference of the Hon. Justices on the Panel before whom the appeal was argued, it was observed that the Notice of Appeal filed on the 6th February, 2013 by the Appellant against the judgment of the Court below delivered on the 11th December, 2012, was filed out of the period of time prescribed by the provisions of Section 27 (2) (b) of the Supreme Court Act 2004 which stipulates that:-  “The periods prescribed for giving of notice of appeal or notice of application for leave to appeal are:-  (b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.”  It is clear from these provisions that the period of time within which the notice of an appeal against the decision of the Court below to this Court in a criminal matter, is limited to thirty (30) days from the date the judgment appealed against, was given or delivered by that Court. Therefore, for a notice of appeal against the decision of the Court below to this Court in a criminal matter to be properly, validly and competently be given, filed and brought before this Court, in accordance and compliance with the provisions, it must be given or filed within thirty (30) days from the date the Court below delivered the judgment in question. It follows, then, that a notice of appeal given against the decision of the Court below to this Court in a criminal case, after the expiration or outside of the period of days (30 days) prescribed and limited in the provisions, would have been given out of the statutory period of time limited for so doing, would be invalid and incompetent. — M.L. Garba JSC.

Available:  Shona-Jason Nigeria Limited v. Omega Air Limited (2005) - CA

⦿ LEAVE FOR EXTENSION OF TIME TO FILE AN APPEAL MAY ONLY BE GRANTED UPON APPLICATION BY A PARTY
The periods of time within which to give a notice of appeal against the decision of the Court below to this Court may be extended by the Court at the instance of a person/s who intend/s to appeal to the Court in both civil and criminal cases, in deserving cases. A valid and competent Notice of Appeal can be given or filed after the expiration or outside the periods of time stipulated under the provisions of Section 27 (2) of the Act, when and only if, the periods of the time was extended by the Court, as a condition precedent. Accordingly, the prior permission or leave of the Court, by way of extension of the relevant period of time within which to give the notice of appeal, is necessary and required for the validity and competence of a notice of such an appeal to the Court. Without the prior permission first sought and obtained by an Appellant for extension of time to appeal before giving or filing a Notice of Appeal in the Court, a purported Notice of Appeal given or filed after the expiration or outside the limited period of time, would be fatally and incurably, invalid and incompetent, thereby depriving the Court of the requisite jurisdiction to entertain and adjudicate over the appeal. See Amadi v. INEC (2012) LPELR – 7831 (SC), Awhinashi v. Oteri (1984) 5 SC, 38, Enweliku v. State (1970) 1 Ail NWLR, 57, Peba v. State (1980) 8 – 11 SC, 76. — M.L. Garba JSC.

⦿ WHERE NO LEAVE FOR EXTENSION OF TIME IS SOUGHT, SUPREME COURT MAY STRIKE OUT CASE WITHOUT CALLING FOR ADDRESS
The above being the position of the statutory provision as interpreted, enunciated and expounded by this Court, it is now beyond arguments that a Notice of Appeal filed or given out of time is incurably and fatally incompetent such that the need to call for address from the parties on the incompetence does not arise. Because the issue goes to deprive the Court of the requisite jurisdiction to adjudicate over purported appeal brought by such a notice, it can properly and competently be raised and decided at the judgment stage by the Court without the need to revert back to the parties for a hearing, being the final appellate Court in the Country, since no amount of arguments, and matter how otherwise ingeneous, could breeze life into an already dead appeal; ab initio. See Omokuwajo v. FRN (2013) 9 NWLR (Pt. 1359) 300 at 332 (SC), NNPC V. Roven Shipping Ltd. (2019) 9 NWLR (Pt. 1676) 67 at 92 (SC), Ogar v. Igbe (2019) LPELR-48998 (SC), Oni v. Fayemi (2019) LPELR 49299 (SC), Eneyo v. Ngere (2022) LPELR-56880 (SC).  — M.L. Garba JSC.

Available:  Society Bic S.A. & Ors v. Charzin Industries Limited (2014)

⦿ INCOMPETENT NOTICE OF APPEAL WILL BE STRUCK OUT
Where it is established that a Notice of Appeal, the live wire of an appeal, is incompetent, this Court will have no jurisdiction to entertain such appeal. An incompetent Notice of Appeal suffers one natural consequential fate, which is, its liability to be struck out for incompetence. In this appeal, the Notice of Appeal which was filed outside the time required by law deserves no other fate than to be struck out. See Onwuzulike V. The State (2020)10 NWLR (Pt.173) 91 at 102 paras F-G. In the case of Enyibros Food Processing Company (Nig.) Limited V. N.D.l.C. (2021)16 NWLR (Pt. 1800) 559 at 571 paras B – D this Court per Eko, JSC (Rtd) stated the position of an incompetent Notice of Appeal thus:  “My Lords because only a competent appeal, validly filed, enures to the appellant to invoke the jurisdiction of this Honourable Court, vested in it by Section 233(1) of the Constitution, to hear and determine appeals from the Court of Appeal, when an appeal appears to be incompetent, it will be properly interrogated to ensure that we do not proceed in an exercise that will eventually be a nullity as well. Madukolu V. Nkemdilim (1962)1 All NIR 587; (1962)2 SCNLR 341, Bronik Motors Limited and Anor V. Wema Bank Limited (1983)1 SCNLR 296, C.B.N. V. Okojie (2015) 5-6 SC (Pt.ii)173; (2015)14 NWLR (Pt.1479)231.”  — J.I. Okoro JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Mohammed Lawal Garba, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

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